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Fairness - Notice of Allegations. Vanovac v. Canada (Public Safety and Emergency Preparedness)
In Vanovac v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a (certified) appeal of a immigration JR, here where the "Immigration Division of the Immigration and Refugee Board of Canada", found the appellant to be "a person described in paragraph 35(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), namely a prescribed senior official in the service of a designated regime".
Here the court considers the procedural fairness issue of the adequacy of 'notice of the allegations' made against the appellant:[3] Mr. Vanovac sought judicial review of the decision and argued that there had been a breach of procedural fairness because the Immigration Division made its findings on a broad view of section 16 of the Regulations, instead of just paragraph 16(c) of the Regulations. Mr. Vanovac did not take issue with the reasonableness of the Immigration Division’s decision.
[4] In reasons cited as 2024 FC 148, the Federal Court dismissed Mr. Vanovac’s application for judicial review. After noting that the duty of procedural fairness owed to Mr. Vanovac was at the higher end of the spectrum and that the Immigration Division had followed the appropriate procedure for finding someone inadmissible to Canada pursuant to paragraph 35(1)(b) of the IRPA, the Federal Court concluded that there was no breach of Mr. Vanovac’s right to procedural fairness. The Federal Court determined that the Immigration Division did not have the obligation to forewarn Mr. Vanovac of the particular paragraphs of section 16 of the Regulations that might be at play given the non-exhaustive list of positions in section 16 of the Regulations. The Federal Court nonetheless certified the following question:Does the duty of procedural fairness owed to an applicant in the context of potential inadmissibility under paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, require detailed notice about the specific nature of the allegations against an individual in respect of the broad, non-exhaustive categories of a “prescribed senior official” under section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227? [5] We are all of the opinion that the certified question must be answered in the negative. While the duty of procedural fairness requires that notice be provided of the specific nature of the allegations made against the individual alleged to be inadmissible under paragraph 35(1)(b) of the IRPA, it does not require that notice of a particular category or categories of a "“prescribed senior official”" under section 16 of the Regulations be provided by the Immigration Division.
[6] The Immigration Division is an administrative tribunal that has specialized expertise in making admissibility findings under the IRPA. Pursuant to sections 165 and 173 of the IRPA, it enjoys a broad discretion in the conduct of a hearing that cannot be fettered or controlled by the submissions of the parties. The focus of the inquiry before the Immigration Division was whether Mr. Vanovac was a prescribed senior official pursuant to paragraph 35(1)(b) of the IRPA as supplemented by section 16 of the Regulations. As such, the Immigration Division was not bound by the parties’ arguments on the appropriate characterization of Mr. Vanovac’s position (Julien v. Canada (Public Safety and Emergency Preparedness), 2015 FC 150 at para. 23).The Immigration Division did not reject the joint submissions arbitrarily and instead provided clear reasons for doing so.
[7] In any event, we are satisfied that, in the circumstances of this case, there was no breach of procedural fairness.
[8] As the Federal Court noted, the report under subsection 44(1) of the IRPA specifically referred to paragraph 35(1)(b) of the IRPA and section 16 of the Regulations, without limitation. The report also signaled that the inadmissibility allegation stemmed from Mr. Vanovac’s position as President of the Central Commission for the Exchange of Prisoners of War between July 1992 and March 1993. In addition, Mr. Vanovac received disclosure of the documents the Minister intended to rely on for the purposes of the inadmissibility finding. We find that Mr. Vanovac knew the case he had to meet to overcome the inadmissibility finding. Mr. Vanovac has not discharged his burden of demonstrating that a breach occurred nor has he shown how a more detailed notice would have affected his ability to respond to the inadmissibility allegations.
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